Saturday, February 29, 2020

Roundtable: Coronavirus and International Affairs--Event Description; Concept Note; Call for Questions and Inputs

The Penn State School of International Affairs, Penn State Law, the Coalition for Peace and Ethics and the Network for International Affairs are delighted to  sponsor a Roundtable: Coronavirus and International Affairs.   The Roundtable will take place FRIDAY 20 March 2020 in Room 012 Lewis Katz Building on the Penn State University Park Campus. The event will be live streamed and a recording of the Roundtable will be available after the event. The Roundtable Description notes:
The emergence of a new strain of coronavirus, COVID-19, one of a more lethal strain of a class of virus that cause disease in humans, has had a profound effect on virtually all aspects of human activity. As of 28 February 2020, 2,868 deaths have been reported of 83,905 confirmed cases in 57 countries (Worldometer, Coronavirus Death Toll (28 Feb 2020)). While the medical and health implications of COVID-19 are profound, the effects of the disease on governance, law, and international affairs will likely be even more significant and long lasting. The COVID-19 epidemic has brought out both the best and worst of individuals and human societies. Those best and worst impulses may eventually embed themselves into the patterns of behavior and expressed as law, policy or cultural bias. This Roundtable brings together experts in law and international affairs from Asia, Europe, North America and the Caribbean to discuss the collateral effects of CORVID-19 in those terms. More specifically participants will speak to (1) misperceptions about the situation in China; (2) the use of coronavirus as a veil for racism; (3) national responses to perceptions of crisis; (4) effects of coronavirus on the movement of people, investment and capital across borders; (5) consequences of coronavirus for the state of international affairs and legal structures (e.g., quarantines, education, supply and production chains, human rights versus collective responsibilities, etc.); (6) repercussions for big global trade projects, with specific reference to the Belt and Road and America First initiatives; and (7) effects on education and other service industries. Inputs are welcome and will be posted to the conference website; participants will respond to questions delivered before the Roundtable date. The Roundtable will be recorded and live streamed. Send questions and inputs to
The Roundtable organizers welcome questions before the event. Participants will respond to questions received in advance of the conference.  Questions may also be submitted during the course of the event.

Roundtable organizers also welcome inputs on the state of international affairs around and respecting coronavirus. Inputs and statements will be posted to the Roundtable website.

Questions and inputs should be sent to VirusConfPSU[AT]

The Rountable Concept Note follows below (including links to downloadable version. 
Roundtable description may be downloaded HERE. 

Information about the Roundtable, Event description, Concept Note, and call for questions and inputs may also be found on the Roundtable website which also may be accessed through the QR Code included above.

Friday, February 28, 2020

Shasha Li: Commentary on Fengjing Liu, Meaning and Radiation of State "Respect" for Human Rights

Over the course of the last several years, Chinese scholars have been engaging in a very interesting discussion about the way that constitutional sensitivities to human rights affects Chinese law and practice in a number f areas. The conversation intensified after 2004 when the State Constitution was amended to include a third paragraph in its Article 33 that provides: "The State respects and preserves human rights."

This year I have the great privilege of hosting a marvelous visiting scholar from China, Shasha Li. Professor Li is an Associate Professor of Law School of Dongbei University of Finance and Economics. She obtained her Bachelor of Law from Zhongnan University of Economics and Law, her Master of Law at Nankai University; ad her Doctor of Law at Jilin University. Professor Li may be contacted at fishsuncat [AT]

I have prevailed on Professor Li to offer readers in English a glimpse at some f the rich discussion among academics who are considering the application of principles of human rights with Chinese characteristics and compatible with the Chinese political and normative system.

For her first commentary, Professor Li has chosen the essay, "Meaning and Radiation of State "Respect" Human Rights," authored by Fengjing Liu, Professor of Political Science and Public Management School at East China University of Political Science and Lawand published in Academic Exchange (2019 (3)).

The essay follows below.

Thursday, February 27, 2020

Lawyers Communicating With Clients--Interview With Mohammad Al-Moshigh

I was honored to have been interviewed by Mohammad Al-Moshigh (LL.B, LL.M. legal specialist) who is doing advanced graduate study here at Penn State.

In his words:
Today I had the honor to speak with the godfather of Law and my greatest Professor Larry Catá Backer .It was an interesting interview in which we talked about the most important skill that lawyers should have when communicating with their clients.🙏🏻 take this opportunity to re-post his interview (original here). The interview is in English but also includes Arabic subtitles (العناوين الفرعية العربية).

I appreciated the opportunity to think a little more deeply about the very core of what it means to think (and act) like a lawyer, and the nature of that outlook on a lawyer's obligation to clients, and the social order. The direct link to the interview may be accessed here.

Wednesday, February 26, 2020

Save the Date: Roundtable--Coronavirus and International Affairs

The Penn State School of International Affairs, Penn State Law, the Coalition for Peace and Ethics and the Network for International Affairs are delighted to  sponsor a Roundtable: Coronavirus and International Affairs.

The Roundtable will take place FRIDAY 20 March 2020 in Room 012 Lewis Katz Building on the Penn State University Park Campus. 

The event will be live streamed and a recording of the Roundtable will be available after the event.

The Roundtable organizers welcome questions before the event. Participants will respond to questions received in advance of the conference.  Questions may also be submitted during the course of the event.

Roundtable organizers also welcome inputs on the state of international affairs around and respecting coronavirus. Inputs and statements will be posted to the Roundtable website.

Questions and inputs should be sent to VirusConfPSU[AT]

The Conference Statement, and more detailed information will follow in a later post.

Sunday, February 23, 2020

Automated Law: The Banalities of Constructing a Social Credit Style Rating System with Western Characteristics, One Well Meaning Intervention at a Time

Westerners, and especially their elites and social media "influencers" of mass opinion, tend to wax ever so eloquently about the dangers of data driven governance.  They worry especially about social credit systems, and more pointedly those "oriental" systems that are both hierarchical and managed by the state.  They fear a social control that manages people into certain behaviors defined and enforced through state organs (or the administrative organs of enterprises pursuing their own aims). But they also worry about the enterprises whose operations make such systems possible (e.g., here).

And yet, in the most banal of ways, liberal democratic society continues to construct its own contextually relevant social credit and data driven governance systems. These are the very systems that the so-called protectors of core liberal democratic values caution against.  And so they do. . . . unless it suits projects for the (re)construction of people and institutions into some sort of ideal type. That construction now clearly has two quite distinct faces.

The first--and the one that most anyone with any pretension influencing public opinion tends to focus on--includes compliance and ratings systems developed in the context of economic activity and overseen  by enterprises, the state, or both.  Usually these are understood in the context of compliance and risk prevention, mitigation, and remediation, initiatives.  Sometimes they are indirectly managed by the state--for example through guidance letters circulated by administrative officials to individuals or enterprises subject to their authority. These include the Department of Justice circulars on guiding the exercise of prosecutorial discretion to charge enterprises (DoJ, Evaluation of Corporate Compliance Programs (April 2019)), and the controversial circular by the Obama Administration "dear colleague letter respecting the management of claims made under Title IX of the Education Amendments of 1972 in universities (HERE). Often, and more criticized are data driven interventions by enterprises, especially where such systems focus on data gathering for their own management of stakeholders or consumers, or where such data is monetized in data markets, or especially where the data is used for decision making that may reflect social bias.

The second--and the one that tens to be ignored or more often lauded by that group of influencers--includes ratings systems (sometimes with rewards and punishments usually for those who consent to participate in the programs). These are both criticized and utilized by all social actors (relative ease with which they may be developed and deployed by just anyone.  It is perhaps for this reason that ratings systems have become popular among non-giovernmental organizations e.g., The Credit Rating Controversy; What’s (Still) Wrong with Credit Rating Agencies)--from credit rating (here) to university (here) ratings systems. Increasingly, ranking have become the means  through which the business of state--and of the business of exercising administrative discretion in the public and private sector--is undertaken. And indeed, it appears that the more the systems of rankings are criticized, the more important they are in managing and ordering the structures of everyday life. Deliciously ironic is the current absurdity of elite life in liberal democratic states where the increase in criticisms of ratings systems increase in proportion to their use by the very people delivering these criticisms for consumption by the masses or (usually more well targeted to their own social "in group set").

What makes the second form of ratings both more potent and more banal, is the ease with which they can be created and used. Even more easy is the flexibility built into markets driven democratic systems for private parties to seek to strengthen their data driven ratings systems by algorithms that produce punishments and rewards  depending on where on the ratings scale the object of ratings falls. I have spoken about the ease with which these ratings systems can be constructed, and can be converted into a proper social credit regime (see "Social Credit and Foreign Enterprises Along the Silk Road": Remarks prepared for a Lecture Delivered at the Institute for East Asian Studies Cologne, Germany October 2019).

All that is needed for the construction of a ratings system is: (1) access to data; (2) a means of rationally analyzing the data on the basis of ordering principles; and (3) a way of reducing that analysis (e.g., of flattening the analysis) to a relational identifier that signals the conformity of the object of analysis to an ideal type. Given this simple framework--this framework that values bias (one is not looking for "facts", one is instead looking to create incentives to change behaviors measured against an ideal that is itself the product of ideological choices made by the person or institution seeking to construct the rating system, and thus its inherent political nature)--it becomes easy to see how anyone can construct such systems as long as one has access to data and analytics as well as a clear vision of the object of rating. 

It is for this reason, of course, that both non-governmental organizations and enterprises value data driven ratings as an easy means of attempting to (1) control narrative; (2) change behavior; (3) augment the legitimacy of the ideological positions buried within the ratings metrics. Ratings, in this sense, becomes banal. And so banal--and uncontrolled, another object of markets for the management of stakeholder.  In this sense it is value producing not just as politics but as ideology as well.  And to the extent it can be monetized, it represents a means by which an organization can make money by"preaching through ratings.

All of this comes clearly into focus in the recent efforts by Harry, the current Duke of Sussex, to change the way that people think about traveling.  To that end, the Duke has shown how virtually anyone, with access to economic and financial power, can dive into the ratings management arena and leverage the power of data driven rankings to change the behaviors of targeted individuals or institutions. That effort, of course, was not undertaken b y the Duke himself.  He no doubt is far too busy to actually gather data, construct analytics, develop the ideologically based principles, and produce the ranking necessary to undertake this project.  Rather, he serves as a nexus point around which those institution that might find such an enterprise useful (in every sense of the word) top do the work over which he presides. But that is the point! As long as one can aggregate the necessary factors for the production of rankings, anything is possible.

The rest is politics and one's placement on the hierarchies within the aristocracies of Western liberal democracy. And yet that also holds a second essential point of automated governance.  It is this: while anyone (me included) can develop a data driven system of ratings with governance effect, the extent of that effect can also be measured.  And the measure of that effect is in part a function of the power and authority of those doing the ratings.  It is not enough, then, to be able to build a ratings scheme.  It is also necessary to amass enough power (whether measured by influence, authority, control, or other measures) to induce stakeholders to pay attention and to believe that the ratings will have consequences for their own welfare (in the case of companies an effect on their ability to generate revenue; in the case of consumers their belief that ratings affect their place within the societal order they inhabit).

In the case of the Duke of Sussex's efforts, that involved "partnering" with  key actors to create Travelyst, an effort to produce ratings related to the carbon footprint of travel. Note here the nexus of connection between the idea--sustainability--and the leading group which together effectively creates a regulatory joint venture that is vertically integrated for the production and utilization of data; which have the economic capacity to develop and operate analytics based systems, and which have the technical know how to design and broadcast the ratings.  They each, and together, also have the capacity to produce the sorts of rewards and punishments necessary to convert a ratings into a social credit system (e.g., by adjusting the price of their services for individuals and organizations who conform to behavior standards as evidenced by increases in the positive value of their ratings). This sets the stage for an effective (within the ambit of its "jurisdiction") automated regulatory system. "We want to be the driving force that paves a new way to travel, helping everyone explore our world in a way that protects both people and places, and secures a positive future for destinations and local communities for generations to come." (Travelyst website)) But it also suggests the peril of behavior modification through ratings systems as politics where the proponent, himself, my be subject to  criticism for failure to modify his own behavior.

News coverage of this new ratings effort and its partners follow below. I leave it to readers to form their own conclusions within the greater context of data driven behavior changing ratings and its growing ubiquity within the societal structures of the West.  What is clear, however, is that there is a certain perversity in the emerging systems of automated law.  In this case, even as its challenge for conventional principles of human rights is noted, it is sometimes irresistible by those who defend human rights and old fashioned principles of liberal democracy to use the very tools they might find troubling (e.g., where social objectives do not align) to advance their own aims for behavior modification and attainment of the perfected individual engaging with perfected institutions within a perfected social system.

The images above are all from the Travelyst website (with the exception of the picture from Oxfam's "Behind the Brands Scorecard."

Thursday, February 20, 2020

Coalition for Peace & Ethics (CPE) Submission of Written Inputs to the UN Working Group on Business and Human Rights Report to the HRC 44th Session on the Theme: "Connecting the business and human rights and anti-corruption agendas"

In a prior post (here) we passed along a call for written inputs circulated by the Working Group for Business and Human Rights to be considered by the Working Group in the preparation of its Report on the theme "Connecting the business and human rights and anti-corruption agendas.” 
 The Working Group’s report will address how the anti-corruption field can be further strengthened and aligned with the “Protect, Respect and Remedy” pillars of the UN Guiding Principles. It will consider how to better integrate human rights due diligence in anti-corruption and anti-bribery measures, moving from a risk-to-business to a risk-to-people approach. The Working Group’s report will propose recommendations to States, business and civil society to address these manifestations, including in such areas as improved policy coherence, enhanced human rights due diligence, and measures to strengthen access to remedy. (Working Group Call for Inputs).

The Coalition for Peace & Ethics (CPE) is delighted to share here with interested readers (below) its contribution to the inputs requested by the Working Group on Business and Human Rights.
CPE appreciates the opportunity to comment on this important project of the Working Group. We have every confidence that the Working Group will move its project forward in ways that will align with the core principles and objectives of global anti-corruption efforts undertaken within and to the necessary extant furthering the great principles of human rights (in general) and the UNGP framework in particular. We welcome the recognition by the Working Group of the strong alignments between the good governance principles, respect for open, fair, transparent, and fair markets, and the core principles of the UNGP that themselves strongly underline the utility of good governance and respect for open, free, and fair engagements between all of the key stakeholders whose interactions produce sustainable and rights respecting advances of the human condition for all inhabitants of the globe that advance respect for international values within the national and cultural contexts in which it must be embedded.
The Input requested is organized around ten questions posed for guidance by the Working Group.  CPE cautioned the Working Group respecting conflation of corruption as a moral and as a legal issue. It noted that that object of corruption--individuals, institutions, or acts--will have to be carefully considered to ensure alignment with the structures of legal and societal liability under the UNGP and related state legal regimes. CPE noted that the regimes for aligning corruption and human rights may differ under the UNGP First and Second Pillar.  CPE urged the Working Group to consider the utility of structuring corruption-human rights alignments around emerging regimes of data driven governance constrained in turn by the emerging human rights law of data. CPE noted the challenges of aligning the agendas of states and enterprises in connection with this project--states tend to focus on the management and disciplining of its officials (and less so on systemic corruption); enterprises consider both public and private corruption and vary their responses in accordance with legal risk. CPE cautioned that any alignment effort would have to consider the challenges of process issues, particularly the issues of  causation, reliance, sovereign immunity, and remedy. CPE expressed the need to consider the possibility of alignment between criminal law and the management of public investment and lending functions. Lasdtly, CPE suggested the contours of the work that remains to be done to effectively rationalize any system of alignment between corruption and human rights. 

We look forward to studying the input of others as they become available on the Working Group website.

Tuesday, February 18, 2020

"The Hour of Decision"(?)--The Munich Security Report 2020 and the Cunundrums of "Westlessness"

There has been some, but really not much, effort to report on what had become one of the great networking and narrative controlling events in the West for the "security" crowd--the Munich Security Conference, whose 56th meeting was recently held. That is a pity.  People in high positions of authority and their dependent gaggle of enterprises, political figures and administrators, tend to serve as an excellent barometer of both internal battles for the "soul" of the official narrative, and the practical consequences of the embrace of a dominating narrative on the way in which the states and enterprises which these individual mange then respond to outside stimulus (e.g., migration, foreign elements, and the construction and response to "threats"). 

There is something bracing--and perhaps even naughty--about a report produced by a civilization's leaders, framing its analysis by reference to Oswald Spengler's The Decline of the West (Der Untergang des Abendlandes), or The Downfall of the Occident, 2 volumes 1918/1922).  It has the feel of leftist intellectuals engaging with Carl Schmitt, and perhaps toward the same ends. The West has been wringing its collective hands about  a nostalgia for its muscular and optimistic culture in the face of a matured and aimless civilization since at least the time of the establishment of the Deutsches Reich in 1871 (with a keening nostalgia for that of original (911-1806)). And, indeed, the reference reminds us not just of Spengler's amplification of the ancient tension between culture and civilization popularized for a literate and increasingly powerful administrative elite, but it ought more profoundly also recall with even greater force the more profound engagement with this sort of notion of cyclical decadence and renewal developed by the brilliant Tunisian philosopher Abd al Rahman ibn Khaldun (أبو زيد عبد الرحمن بن محمد بن خلدون الحضرمي) in the 14th century (The Muqaddimah (1377) with its notions of asabiyah (عصبيّة) or group feeling), but also now modernized for an Anglo-European elite by Ferdnand Tönnies in the late 19th century in his classic Gemeinschaft and Gesellschaft (Leipzig 1887). And, indeed, to some extent, the opening quote and the angst of "Westlessness" on which the 2020 Munich Security Report is grounded, reminds us that Western elites are as stuck in the 191th century (the moment of its European apotheosis) as much as certain elements of Chinese and other elites are as stuck in the same century (marking the moment of their greatest decay). The result, for the moment, may be the very directionless that both dies fear and thus the worry about security in the face of civilizations in destabilized states.

Sunday, February 16, 2020

Automated Law: Who Ought to Have the Right to Authoritatively Misread Emotion?

(Elizabeth and Jane Bennet | © Pride and Prejudice (1995)/BBC Productions)

I was intrigued by a recent story that appeared in several media outlets (in this case the on line version of an enterprise that had once operated as a newspaper) which was written for two purposes (Hannah Devlin, AI systems claiming to 'read' emotions pose discrimination risks, The Guardian (UK) 16 February 2020).  The first was to alert/alarm its readers about the existence of facial recognition technology's apparent ability to read emotion through machine learning (artificial intelligence) programs created for that purpose. The second was to suggest (again in terms that accord with the hierarchy of discursive taboos now current in this society) that such abilities are both overstated and would likely violate contemporary core taboos as they are now currently understood. 

The article is necessarily, and quite correctly (given the tenor of the times and the trajectories of contemporary social change), focused on the bias consequences of machine programmed error.  Yet that baseline issue raised by the article, as representative of the quite influential school of critique of which it forms a part, is not so much about error rates in facial recognition of emotion, as it is about the willingness f society to allocate an authority to make judgments, understood as likely to be based on error, on other humans.  The error-making machine merely shines a spotlight on the more fundamental issue of the human decision-maker who is permitted to act on error, but whose proclivity to error is merely ceded to a machine. The issue of who in our political society ought to be vested with the power to authoritatively base decisions on such error with impunity remains under-explored and unresolved. In the face of the coming of the machine, that question may now need to move to center stage.

This post includes the relevant part of that reporting along with brief reflections with a very great nod to Jane Austin and her Pride and Prejudice (1813).

Friday, February 14, 2020

Call for Written Inputs: Working Group on Business and Human Rights; Project on business in conflict and post-conflict contexts

I am delighted to pass along a call for written inputs which has been announced by the Secretariat of the Working Group on Business and Human Rights.
As part of its mandate to promote the UN Guiding Principles on Business and Human Rights, the UN Working Group on Business and Human Rights launched a project in 2018 to clarify the practical steps that States and business enterprises should take to implement the Guiding Principles in conflict and post-conflict contexts.
 The Working Group invites all interested parties to submit relevant information and materials to help inform the project. Submissions that address one or more of the identified focus areas are encouraged.Case studies and good practice examples from past and current conflict situations in different regions are welcome.
Deadline is 10 April 2020.
Details follow below--English with links.

Thursday, February 13, 2020

Applying Leverage Across Control Chains--Dutch NCP: Final Statement Uni Global Union v. VEON 11 February 2020

On 11 February the Dutch National Contact Point delivered its Final Statement in a specific instance filed by UNI Global Unions against VEON, a Dutch Company identified as a multinational enterprise. While the Dutch NCP has been particularly active recently, this Final Statement raises issues of particular note respecting the application of the principle of "leverage"  in the context of the OECD Guidelines for Multinational Enterprises.

The Dutch NCP applied the principle of leverage in two quite distinct ways.  The first focused on the use of leverage against states through pressure from private actors.  The principal target of the Final Statement might not necessarily have been the Bagladeshi subsidiary of VEON, which had not engaged with a union representing many of its workers, but rather with the Republic of Bangladesh itself. It represents an effort by functionaries of the Netherlands, advancing their sense of international norms, to pressure the Republic of Bangladesh to conform to obligations under international law developed under the auspices of the International Labor Organization (ILO). The pressure would not come directly from the Netherlands NCP, but rather from VEON itself seeking to avoid consequences (in the Netherlands) for the application of Bangladeshi law applied to its subsidiary.
The NCP observes that the case concerns rights guaranteed by article 2 of ILO Convention no. 87, which states “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” Bangladesh ratified this Convention in 1972.

The NCP observes that the ILO has stated on many occasions that the stringent procedural conditions for the registration of trade unions in Bangladesh are not in line with with international legislation and necessitate amendment of local legislation.

* * * The NCP notes that in its 2017 Report, published at the ILC session of 2018, the Committee of Experts of the ILO (CEACR) repeated its strong concerns about the application of Convention 87, notably with regard to the rules on registration of unions, noting high numbers of rejected applications (64 percent), many of which were rejected without a clear indication as to the reasons. It requested the Government of Bangladesh to continue to take all necessary measures to ensure that registration is a simple, objective and transparent process, which does not restrict the right of workers to establish organisations without previous authorisation. (Final Statement, p. 5).
This was a strategy embraced by the complainant and the Dutch NCP and resisted by VEON, which intimated ethical constraints (See, Final Statement, pp. 3).

The second focused on the use of leverage by a parent company on its subsidiary where the national law under which the subsidiary operates may make direct compliance with the OECD Guidelines for Multinational Enterprises (at least as interpreted by the Dutch NCP) potentially unlawful. The Dutch NCP noted in its conclusions that there were difficulties in the capacity of the VEON subsidiary to actvely embed teir version of internaitonal obligations in this context because of the state of Bangladeshi law.  However,
When it comes to the situation of VEON, it is the understanding of the NCP that nothing in Bangladeshi law would prohibit VEON, a multinational based outside Bangladesh, to enter – outside Bangladesh - into dialogue with the local trade union in question, BLEU, and/or its international representative UNI-Global Union, for instance in the context of an NCP specific instance procedure. (Final Statement p .6).)
As a consequence the issue of leverage proved to be a potent one for at least nudging the subsidiary and for internationalizing the set of obligations within the private space of control, even as the surrounding public space of national law might prove hostile.
Furthermore, the NCP is of the opinion that it can be expected from VEON under the OECD Guidelines to carry out risk-based due diligence to identify, prevent and mitigate the human rights impact of their operations in Bangladesh, notably when it comes to the freedom of association both as a fundamental labour right and as an enabling right.

According to the NCP, VEON can also be expected, under the OECD Guidelines, to use its leverage towards its daughter company Banglalink for it to adopt a more positive and proactive attitude to resolve the ongoing registration issue between the local union and Banglalink.(Final Statement, p. 6)
And on that basis outlined a set of recommended actions (Ibid., p. 7).  The Dutch NCP, of course, never reached the issue of legal risk that might attach to the international obligations it read into VEON's duties under the OECD Guidelines. It is impossible not to note that leverage is an easy concept to sling around where it is a Dutch company and a Dutch governmental unit projecting international standards downward into Bangladesh. But ought one to be troubled where the development and deployment of these great (and conceptually unobjectionable) principles appear always to originate within the administrative orders of apex states and are then projected downward to increasingly law development dependent states?

That leaves open an interesting question: whether the leverage obligations under international law may take precedence over the prudential obligation of business to prevent, mitigate or remediate legal risk (including the risk of veil piercing or of agency). Clearly there ought to be a way of avoiding converting OECD Guidelines obligations into a zero sum game pitting social responsibility on the one hand, against legal risk.  Yet finding that space may indeed prove increasingly difficult where the issue is ignored by decision makers driving the jurisprudence of the OECD Guidelines. At the same time one might seek to more rigorously understand the utility and limits of leverage--otherwise there is a very real danger that it will join the lexicon of "magical" words and phrases over-utilized for all the right reasons but with increasingly diminishing effects.

The Final Statement follows in full below.

The Problem of Data Infrastructure in an Age of Post-Global Empire--The Criminal Litigation Against Huawei for Racketeering and Other Crimes

Ratcheting up its pressure campaign against Huawei and its affiliates, the Department of Justice and the FBI announced today that it has brought 16 charges against Huawei in a sprawling case with major geopolitical implications (you can read the full 56-page indictment here). (The US is charging Huawei with racketeering).
The superceding indictment was filed on 12 February in the Federal District Court of Brooklyn, New York. The reporting continues to spotlight the intensification of one of the latest skirmishes of the great war being waged between the two great emerging 21st century imperial powers as they seek to project their (abstracted) borders through the construction of tangible and intangible infrastructure around which they will extend and protect their global production chains. (On the work of the Coalition for Peace and Ethics theorizing the emerging new forms of Empire, see e.g., essays in Emancipating the Mind in the New Era: Bulletin of the Coalition for Peace & Ethics 14(1) and generally,  CPE EmpireSeries). The charges are nicely timed to align with Canadian action on  Meng Wanzhou, the CFO of Huawei who remains in Canada.And they are vital for the construction of two similar lines of narrative originating in the US and China, each seeking global consensus painting the other a rogue and lawless sovereign.   "The top two senators on the Senate Select Committee on Intelligence, Richard Burr (R-NC) and Mark Warner (D-VA) said in a joint statement that “The indictment paints a damning portrait of an illegitimate organization that lacks any regard for the law.”" (The US is charging Huawei with racketeering). It also closely follows the high profile announcement of indictments against certain individuals associated with the Chinese military in connection with the hacking of Equifax's data bases several years ago (Justice Department announces 4 Chinese military officers indicted in Equifax hack: Officials say some 150 million Americans were affected).

This front in the first of the great imperial wars of the 21st century also raises interesting issues  for the construction and operation of automated law. Chief among these are issues around data integrity, a subject recently considered:Automated Law: The Problem of Data Integrity Moves (if only for a Moment) to Center Stage).   Indeed, while our news sources continue to stoke the traditional fears of traditional bad acts (theft, defrauding financial institutions industrial espionage, threats to national security, vulnerability of state secrets and the like) the coverage leaves substantially undiscussed the way that these behaviors (or the effort to get the general population to embrace these narratives for purposes of managing popular perspective--always useful on both sides) may affect the construction and operation of automated regulatory systems. 

Data infrastructure is of course a vital link in the construction of data driven governance.  It serves the way a road or river serves conventional commerce.  And though, like a road or river, infrastructure has been monetized (and thus the popular focus on that aspect of this construction), it serves as a critical choke point for the operation of everything from markets in data to the mechanisms through which automated law can in fact become automated both in its input and output functions.  Protection fo the integrity of the infrastructure, like the protection of the seas against pirates or the roads against bandits becomes critical.  But where the road operator itself becomes the bandit--like the Rhine robber barons of the pre-modern age, then the integrity of the system itself can be easily destabilized.  

None of this is to take a position against or for Huawei in the litigation that will unfold going forward--that assessment I leave to others better informed.  But the litigation ought to serve as a warning to those fashioning the new post-global empires that leaving their data infrastructures (especially storage, transmission, application, surveillance infrastructures) unsupervised threatens the integrity of the whole architecture of regulatory management that itself will serve as the glue that holds our 21st century empires together.  The litigation, then, should provide the United States (or its allies) little comfort unless it is sure that it has its own infrastructure houses in order. For China. the litigation serves as confirmation of the start of a "New Era" in international relations with the US (unnoticed but apparent since 2016) within which empire enhancing infrastructure has been unmasked as inherently political and an essential element not just of economic policy and politics. but of the structures of "new era" regulatory initiatives as well.

The Justice Department Press Release follows below.

Tuesday, February 11, 2020

Automated Law: The Problem of Data Integrity Moves (if only for a Moment) to Center Stage

I have been writing about automated law--data driven governance the object of which is to automate  the system for managing the behaviors of individuals and institutions through the imposition of  systems of punishments and rewards that are tied to lists onto which people (and entities) are placed as a result of the application of objectives based analytics to analytics-relevant data (e.g., here, here, and here).  That is a  mouthful--to be sure.  Yet a careful parsing suggests the transformative elements of automated law--though the object remains unchanged (to get people to obey a rule or conform to a norm articulated through law or directive (itself derived from some lawful source created in some lawful manner) but automated in the sense that enforcement does not require the exercise of administrative or judicial power.   

The basis for this enterprise is data. The importance of this element of automated law is inversely related the attention paid to data by those who worry (from liberal democratic and Marxist-Leninist perspectives) about the integrity of data driven governance and it collateral effects (especially its effects on the integrity of conventional law systems).  That is a pity. The issue of integrity is quite distinct from but no less important that the grounding premises from which analysts and coders translate the language of objectives into language that makes it measurable and then on that basis select those its of "facts" (information that becomes "facts" in the context of the analytics even if in other context it might be opinion, for example). While data choice goes to the construction of building blocks for analytics, data integrity goes to the issue of the reliability of the data (the information treated as "fact" for purposes of coding) is actually what it stands for, and that it can be protected from interference by others.  

Source Verve
Three of the more important elements of data integrity are related to the protection of the process of data harvesting and data retention. The first touches on "truthfulness" by legitimate sources (objects) of data (self-reflexive weakness); the second touches on "truthfulness" by illegitimate sources who inject data designed to skew analytics or to shift the result of ratings for individuals (internal systemic weakness); and the third touches on the ability to protect a data warehouse from theft or unauthorized persons (external systemic weakness).  These challenges pose difficult problems.  

The first constitutes self-reflexive corruption. It is the sort of resistance by the objects of data harvesting that itself might become the object of data driven governance; but it also suggests that the objects of data harvesting are not to be assumed to be a constantly reliable source of information (other than information about their willingness NOT to provide truthful information). Robust data harvesting must include back-up or conforming sources. Here we have system failure.

The second constitutes internal corruption.  It marks the fundamental illegitimacy of the system of data driven governance where it serves as a cover for arbitrary decision making. It is usually evidenced by the insertion of false information by state agents, or by the agents of the operators of the data governance (usually private) system, to further the personal or local institutional aims of the officials engaging in the practice. Here we have system legitimacy.

The third constitutes external  corruption. It is the sort of action that represents the failure to protect the integrity of the system (and its data) from outsiders. It calls into question the integrity of the system (e.g., it becomes unclear who inserted data into the data warehouse, or to what ends; or why data was extracted from the warehouse). It serves to expose the lack of systemic robustness.  Here one encountered the possibility of systemic manipulation--sometimes observable and sometimes not.

In all three cases, one encounters not just corruption in typical variation, but the corrosive effects of fakery. That fakery is at its most direct in the instances of self-reflexive corruption; but it is present as well in internal and external corruption--not just in the obvious way--bad data--but in a more subtle way, the effect of bad data on the sense of trust in the system or its integrity.  Where the objects of data driven governance lose trust in the truthfulness of the system and in its integrity, it power to effectively manage behavior becomes seriously weakened.  One sees that, for example, in current efforts to update the U.S. Census data warehouse (Census Relying on Social Media, Advocates to Stop Bad Info, some of which appears below). In the longer run it is this effect on data confidence, rather than the correctable glitches in data, that provide the greatest threat to automated law. There is a strong parallel here to the challenges of market integrity that is worth exploring.

Examples of each, three drawn from quite recent news stories, follows.

Sunday, February 09, 2020

Developing the Role of the Communist Party Within State Owned Enterprises: 中共中央印发《中国共产党国有企业基层组织工作条例(试行)》[The Central Committee of the Communist Party of China issues the Regulations on the Work of Primary Organizations of the Communist Party of China (Trial)]

Though it has been over a month, I thought it might be useful to circulate for consideration a potentially important draft Regulation on the Work of Primary Organizations of the Communist Party of China (Trial Implementation) 《中国共产党国有企业基层组织工作条例(试行)》(以下简称《条例》) which came into effect on a trail basis December 30, 2019. 
The notice pointed out that state-owned enterprises are an important material and political foundation of socialism with Chinese characteristics, and an important pillar and relying force for the party to govern and rejuvenate the country. Adhering to party leadership and strengthening party building are the "roots" and "soul" of state-owned enterprises, and the glorious tradition and unique advantages of our state-owned enterprises. [通知指出,国有企业是中国特色社会主义的重要物质基础和政治基础,是党执政兴国的重要支柱和依靠力量。坚持党的领导、加强党的建设是国有企业的“根”和“魂”,是我国国有企业的光荣传统和独特优势。] 《中国共产党国有企业基层组织工作条例(试行)》
The Company Law of the PRC (2016) Article 17 provides: "The grass-root organizations of the Communist Party of China in companies shall carry out their activities in accordance with the Constitution of the Communist Party of China." The nature of that engagement is specified in Article 32 of the Constitution of the Communist Party of China with respect to state owned and private enterprises. 
In a state-owned or collective enterprise, the primary Party organization acts as the political nucleus and works for the operation of the enterprise. The primary Party organization guarantees and oversees the implementation of the principles and policies of the Party and the state in its own enterprise and backs the meeting of shareholders, board of directors, board of supervisors and manager (factory director) in the exercise of their functions and powers according to law. It relies wholeheartedly on the workers and office staff, supports the work of the congresses of representatives of workers and office staff and participates in making final decisions on major questions in the enterprise. It works to improve its own organization and provides leadership over ideological and political work, efforts for cultural and ethical progress and the trade unions, the Communist Youth League and other mass organizations.

In a non-public economic institution, the primary Party organization carries out the Party's principles and policies, provides guidance to and oversees the enterprise in observing the laws and regulations of the state, exercises leadership over the trade union, the Communist Youth League organization and other mass organizations, rallies the workers and office staff around it, safeguards the legitimate rights and interests of all quarters and stimulates the healthy development of the enterprise. (Constitution of the CPC Art 32).

The Regulations are particularly noteworthy (for Westerners at least) for two reasons (even if the organization of Chinese SOEs generally do not hold much interest otherwise). The first touches on the political organization of the enterprise and its potential effects on business to business relations in sensitive industries, especially where the connection might touch on matters subject to scrutiny by home states. This might be particularly relevant in the connect of joint ventures, cross investments and other arrangements where an element of control may be involved. Western enterprises with control relationships with local enterprises (for example subsidiaries) will have to take this development into account in organizing its own corporate governance strategies--and especially in their reporting of their corporate governance within their home states to the extent required under home state law. 

The second, and more important, reason is that this template of corporate governance will likely affect the entire control or contract chain of Chinese SOEs operating globally. That ought to be of particular interest to enterprises along the Chinese Belt and Road, many of which will engage in intense inter-relations with Chinese enterprises, including SOEs. It ought also to be of interest to those enterprises outside the Belt and Road sphere that are enmeshed in Chinese global production chains (or at least in such chains where Chinese enterprises, and especially SOEs) are positions at or near the apex of production control or direction.

None of this is to suggest that something terrible, or terribly new, is represented in the Regulations.  Indeed, that is not the case.  But it is to suggest that the renewed emphasis might mean that a set of practices that were observed at the margins and unevenly across industries might now be oven greater emphasis. It is also a signal about the nature of corporate governance of SOEs as inherently BOTH economic and political--and that the political must necessarily be undertaken under the leadership of the CPC.  To those ends,  Chapter 3, 4 and 7 (and here especially Article 31) merit considerable attention.

The Regulation is organized as follows:
Chapter 1 General Rules (Articles 1-3)
Chapter 2 Organizational Settings (Articles 4-10)
Chapter 3 Main Duties (Articles 11-12)
Chapter 4  Party Leadership and Corporate Governance (Articles 13-17)
Chapter 5 Party Building (Articles 18-22)
Chapter 6 Political Construction of the Party (Articles 23-27)
Chapter 7: Democracy and Supervision within the Party (Articles 28-31)
Chapter 8 Leadership and Guarantee (Articles 32-38)
Chapter 9 Supplementary Provisions (Articles 39-41)

The Regulation in the original Chinese and in a crude English translation follows.

Saturday, February 08, 2020

李文亮医生,孟子也为你点赞 常樯 儒 [Dr. Li Wenliang, Mencius also likes you, Original Chang Yan Ru]

There has been much written about Dr. LiWenliang, who died of complications from a coronavirus infection in the early hours of Friday morning local time in Wuhan Central Hospital.
"Our hospital's ophthalmologist Li Wenliang was unfortunately infected with coronavirus during his work in the fight against the coronavirus epidemic," the hospital said. "He died at 2:58 am on Feb 7 after attempts to resuscitate were unsuccessful."  Li was among a number of supposed "rumormongers" detained in December for spreading news about the virus. He had warned about a potential "SARS-like" virus spreading in Wuhan. Nothing Li said was incorrect, but it came as officials in the city were downplaying the severity of the outbreak and its risk to the public (Wuhan hospital announces death of whistleblower doctor Li Wenliang).

I found the following essay moving and so thought to post it for those who might find in its words some comfort or wisdom during these difficult days. The essay appears in the original Chinese and in a crude English translation. 

Friday, February 07, 2020

Just Published: Larry Catá Backer and Flora Sapio, "Popular Consultation and Referendum in the Making of Contemporary Cuban Socialist Democracy Practice and Constitutional Theory," University of Miami International and Comparative Law Review 27(1):37-130

I am delighted to announce the publication of Larry Catá Backer and Flora Sapio, "Popular Consultation and Referendum in the Making of Contemporary Cuban Socialist Democracy Practice and Constitutional Theory," University of Miami  International and Comparative Law Review 27(1):37-130.

The article may be of interest to those examining issues of comparative constitutionalism, or the emergence of alternative  conceptualizations of democratic expression that may be gaining traction in developing states, or more generally on Latin American studies issues. The article sketches the development of participatory constitutional practices  in Cuba, tracing their origins to the very beginnings of the current post-Revolutionary government in 1959. It suggests the possibility of constructing democratic governance from the baseline of non-Western models and notes both the difficulties of current theorizing of this emerging model, and the great distance that separates conceptualization from any sort of deeply embedded institutionalized practice.

The article is available for download (pdf) HERE. Flora and I tale this opportunity to thank Maia Dumbey, Editor in Chief, and the staff of the University of Miami International and Comparative Law Review for their excellent work, and especially for their care and attention, to this draft as it proceeded to publication.  It was our great pleasure to work with them. 

The Abstract and Table of Contents follow below.

Wednesday, February 05, 2020

Automated Law--The Empire of European Human Rights Law (May) Strike Back

I have been considering the conceptualization, implementation and consequences of data driven governance for law and legal systems. I have suggested  that both of the more important emerging variations--state based social credit systems in China and private markets dependent ratings systems in the West--have been moving toward the realization o an an ideal of legal automation. The shift in imagery shapes the underlying discourse:  the marble statute of a human like goddess holding the scales of justice replaced, in effect, Robocop, by a self learning set of programs that can be mechanically operated without substantial human intervention--except to build the program and set the parameters for the collection of data. Taking the human out of the equation eliminates the corruption of discretion and advances the ideal of uniformity, at least in accordance with the assumptions and mechanics programed into the justice machine.

This binary goes to the root of the fear of law--not just of its replacement by accountability based metrics and compliance cultures, but also of the  consequences of removing the human element from law.  And yet human are conflicted.  It was human desire that embraced compliance cultures in the first place--placing measurable accountability cultures at the center of "new" and "improved" governance.  Metrics, after all, seem far more certain than judgment. It is even more ironic when the human rights community strives toward these accountability based compliance cultures imposed on enterprises in order to ensure their embrace of human rights measures (measured of course against their own personal metrics).  At the heart of automated law and machine justice, then, there may be operating the great contradiction of the marriage of law and metrics based compliance: if (western) legal systems are now based on the fundamental ordering premise of (individual) human dignity, then taking the human out of law (or taking law (its construction or enforcement) out of the human, would fundamentally alter the baseline premise of the human in law.

That, at least, appears to be running through the "mind" of a lower court in the Netherlands that  ruled on 5 February 2020 that the use of an automated machine-based fraud detection system (SyRI--a Risk Indication System) violated Article 8 of the European Convention on Human Rights and its protection of the right to respect private life (ECLI:NL:RBDHA:2020:865). The case did not involve automated law, or even data driven governance.  Rather it involved an instance of machine based predictive analytics to prevent fraud (e.g., "Predictive analytics are increasingly used to compare Medicaid claims across provider peer groups and validated benchmarks. Claims failing to meet expected patterns in type and frequency of visits, diagnoses, prescriptions and other factors are flagged for investigation." HERE). This is big business and increasingly used (here, here, here, here, and here). 

The Dutch court considered an instance of public institutional predictive analytics. At its heart was an engagement with traditional notions of class, but more potently, issues of transparency. These will be of interest to the broader issue of automated law of which predictive analytics may be enmeshed.
SyRI, devised by social affairs ministry officials in 2014, has been used by four local authorities to draw up lists of people suspected of some form of housing or social security fraud. The system uses an algorithm which links government organisations and draws up risk profiles based on the profiles of people already caught committing social security fraud. It then combs the records to find people with a similar risk profile who are then considered to be potential fraudsters and listed for further investigation. . . . The system has also been criticised by UN human rights and poverty rapporteur Philip Alston who told the court by letter that it appears to discriminate against people with little money and people with a minority background. . . Judges also criticized the secrecy surrounding the way SyRI operates, which makes it difficult to monitor and control.
The system has also been criticised by UN human rights and poverty rapporteur Philip Alston who told the court by letter that it appears to discriminate against people with little money and people with a minority background.

(Government’s fraud algorithm SyRI breaks human rights, privacy law)
Judges also criticised the secrecy surrounding the way SyRI operates, which makes it difficult to monitor and control.

Thyere is irony here that is worth exploring. The COurt effectively voids the use of predictive analytics because its lack of tranbsparency runs counter to European norms of human rights--as applied to the objective of monitoring and accountability of state systems. The problem with SyRI can then be reduced to an issue of accountability--to the problem of the exercise of administrative discretion now not exercised within the brains ofg human administrators but guided by machine enhanced analytics for wqhich substantial data harvesting is required. This is an executive function issue.

And yet, embracing transparency does not eliminate the human rights problem (given the applied logic of the European Human Rights Convention system and ist current jurisprudence). Rather it merely shifts the issue from an admisytative to a legislative or regulatory human rights issue.   Predictive analytics certainly sits comfortably within the compliance based governance cultures that value prevention over mitigation and remedy (this is certainly the case with respect to the application of these cultures to human rights in business--and in the nature of the expectations for compliance arising out of corporate responsibility to respect human rights--now read with a bit or irony). The problem of predictive analytics for automnated law, though, is precisely the problem of analytics transparency. If predictive analytics is to have behavior modifying effect, its measurtement parameters must be made transparent--that is what automates law by creating an environment in which incentives and punishments are geared to well known measurable parameters.  People and instittuions change behavior toweards the measure and in that way the analtics, themselves, serve as the baseline for regulatory norms.   

The transparency issue is also interesting because of the further contradictions that it exposes going forward.  In the West, automated law is propelled by the market and private actors.  That requires both access to data markets and the protection of property rights in analytics and algorithm. In that absence of that protection of system as property, markets based development of privatized "next generation" data driven  compliance systems becomes difficult. But here one is dealing with such systems operated by and through the state.  That might suggest a two tiered approach, with greater constraints employed against public actors. If that is the case, then a simple work-around for decisions like this might be to privatize the function.That option, would, at a minimum bring the case back to the courts.  But the real issue will remain--the embedding of compliance culture and automated law within the constraints of traditional law.  The challenge will be to adjust those normative constraints of a public law system to the realities of automated law.

A preliminary summary of the case follows in English and the original Dutch (SyRI-wetgeving in strijd met het Europees Verdrag voor de Rechten voor de Mens). The Opinion (in the original Dutch) also appears below. I suspect we have not heard the last of this case or the issues it raises for Europeans.